Chapter 1 Lecture 2

REMEMBER WE ARE STILL ASKING:
WHO/ WHAT IS A LEGAL SUBJECT?

LEGAL SUBJECTIVITY:
NB: The characteristic that allows an entity to participate

in terms of legal intercourse/legal traffic as a legal subject
and not a legal object.
Two types:
Natural Persons
Juristic/ Legal Persons
IS THERE A POSSIBLE
RECOGNITION OF OTHER
ENTITIES AS LEGAL SUBJECTS:
QUESTION?
• People and certain entities that comply with certain requirements are legal subjects, they
have the characteristic which gives them the ability to participate in legal intercourse as
legal subjects and not legal objects.
THIS GIVES RISE TO THE QUESTION OF WHETHER SOMETHING OTHER THAN A

NATURAL PERSON OR A LEGAL PERSON CAN HAVE THIS CHARACTERISTIC.
1. Do customary law institutions according to which a deceased man's marriage is not
dissolved
• and his surviving spouse maintains the status of a married woman,
• and which further entails that a man with whom the surviving spouse will
conceive children so that (more) children can be added to the house of the
deceased, is named for her, for example,
• mean that the deceased is still a legal subject with legal subjectivity?
2. Or could statutory regulations that forbid the cruelty to animals mean that animals
are granted legal subjectivity?
3. Or could robots produced in terms of AI be granted legal subjectivity?
• The current legal position only allows natural and legal persons to be legal subjects.
• It is, however, also true that the creator of law was led by community opinion, known as
communis opinio populi, in its recognition of entities as legal subjects.
• When it is generally accepted in a particular community, that a certain entity is in a position to

fulfil the functions of a legal subject and should legally be allowed to fulfil such functions, the
creator of law in that community will be willing to recognise that entity as a legal subject.
• It is, however, also true that community opinion can be based on a false premise and can
therefore be a belief in something untrue.
• This could lead to absurdities according to which deceased persons or animals could be
recognised as legal subjects.
• The truth is therefore that only people and natural communities be the bearers of juridical
capacities, subjective rights and duties and should therefore be recognised as legal subjects.
• Notwithstanding the fact that it is possible to recognise entities other than natural and juristic
persons, we are of the opinion that it makes sense to recognise people and juristic persons as being
able to bear juridical capacities, legal rights and duties.
When does a legal subject come into existence and
when does he or she or it come to an end?
When does a legal subject come into existence and
when does he or she or it come to an end?
• For human beings/ Natural persons:

The time in terms of which they come into existence is AT
BIRTH(CH.2) and comes to an end at DEATH (CH.3).
• In the case of Legal persons:
the answer is linked to the fact that there are different types of legal persons and that the formalities for the
establishment of a legal person depends on the type of legal person.
• 1. There are those that can only be established with the permission of the State,
2. Or where the state exercises control in the interests of the community, certain statutorily prescribed requirements
need to be complied with.
• An example from the first category would be ESKOM, which was brought into existence by the Electricity Act 41
of 1987.
• An example from the second category is a business with a profit motive. The legislation which is applicable here
includes the Companies Act 61 or 1973, the Closed Corporations Act 69 of 1984, the Banks Act 94 of 1990 and the
Mutual Banks Act 124 van 1993.
3. In the case of legal persons that are not dependant on the permission from the state,
The common law requirements for the establishment of a legal person merely need to be complied with.
• As explained above, this simply involves that the organisation must remain in existence, irrespective of a
change in membership
• that it must function as a bearer of rights and duties irrespective of the rights and duties of its individual
members and
• that the entity must strive to achieve a predetermined goal which may not be illegal.
• NB: THE LAW OF PERSONS FOCUSES ON NATURAL PERSONS WHILE THE LAW OF LEGAL
PERSONS DEALS WITH THE COMING INTO EXISTENCE AND LEGAL SUBJECTIVITY OF
LEGAL PERSONS.
THE LAW OF PERSONS AND THE
CONSTITUTION OF SOUTH AFRICA
• Constitution contains the most important legal provisions with regards to the country’s
constitutional order.
• Constitution A Constitution is a written document in terms of which a government is
granted its competencies. It also limits the capacities of the government.
• Contains the most important provisions to the Constitutional Order.
• Such provisions are applicable to the state, state institutions of a country, the
competencies of the institutions and how they must exercise such competencies.
• Bill of Rights A Bill of Rights consists of those provisions in a Constitution which provide
and guarantee the rights and freedoms (fundamental rights) of legal subjects. It also
contains limitations on such rights.
• The most important sections from the Bill of Rights relevant for the Law of Persons are
the following:
Section 9 of the Constitution: The Equality Clause
• This section prohibits unfair discrimination on the grounds of,
amongst others, race, sex, gender, pregnancy, marital status, ethnic
or social origin, colour, sexual orientation, age, disability, religion,
conscience, belief, culture, language or birth.
• The legislator is also placed under an obligation to provide
national legislation to prevent and forbid unfair discrimination.
• Discrimination on one or more of the listed grounds will be deemed
to be unfair unless it is proven that such discrimination is, in fact,
fair.
Section 8…
• It states that the Bill of Rights is applicable to ‘all law’.
• This section goes on to provide that the legislator, the executive,
the judiciary and all organs of state are bound by the Bill of
Rights.
• A court is under the obligation to develop the common law to give
effect to the requirements in the Bill of Rights in a case in which it
applies to a provision of the Bill on a natural person.
Section 39..
a court must, when interpreting the Bill of Rights, promote the

values that underlie an open and democratic society based on human
dignity, equality and freedom.
When developing the common law, or interpreting any legislation, a

court must promote the spirit, purport and objects of the Bill of
Rights.
Section 36…Limitations clause
A constitutionally protected right may only be limited in terms of a

law of general application, and only to the extent that such limitation
is reasonable and justifiable in an open and democratic society based
on human dignity, equality and freedom.
Section 28(2)…
which provides that '[a] child's best interests are of paramount importance in
every matter concerning the child'.
The fact that the child's best interests are paramount does not mean that they
are absolute. As with all rights in the Bill of Rights, section 28(2) is capable of
limitation.
THE END

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REMEMBER WE ARE STILL ASKING:

WHO/ WHAT IS A LEGAL SUBJECT?

NB: The characteristic that allows an entity to participate

THIS GIVES RISE TO THE QUESTION OF WHETHER SOMETHING OTHER THAN A

• When it is generally accepted in a particular community, that a certain entity is in a position to

• For human beings/ Natural persons:

a court must, when interpreting the Bill of Rights, promote the

When developing the common law, or interpreting any legislation, a

A constitutionally protected right may only be limited in terms of a

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